Settling Caricom trade disputesTuesday, June 15, 2021
Disputes will inevitably arise within any trading bloc. If it is to operate smoothly — and with predictability and confidence — it is important that the rules be as unambiguous as possible and that disputes, whenever they arise, be adjudicated speedily and fairly.
The dispute between local soap manufacturers and DCP Successors of Dominica illustrates the need for an efficient, agile, readily accessible and competence-driven mechanism for resolving trade disputes within the Caricom Single Market and Economy (CSME).
The deficiencies in the Caricom arrangement for dispute settlement were highlighted in the report of the Caricom Review Commission that I had the honour of chairing. Trade disputes are dealt with by the Council for Trade and Economic Development (COTED), constituted by portfolio ministers from across the region. Adjudicating trade disputes requires expertise that ministers of government do not necessarily possess.
In the instant case, our local manufacturers contend that the soap noodles that they are being coerced to import from Dominica are below the standard they require. This is an issue that must be determined by a technical assessment carried out by individuals with the competence to do so — not by politicians.
At the time when the report was prepared, an annual average of less than three disputes had been referred to COTED. Rather than reflecting smooth sailing in Caricom trading activities, given our experience with patties, peanuts, orange juice, and a host of other products, it suggests that the existing dispute settlement arrangement is not up to scratch and aggrieved parties, intimidated by the tedious process, just give up and move on.
It is simply not possible for COTED ministers to convene with the urgency and responsiveness required to deal with, for example, a shipment of perishables held up at a port of entry because of a dispute over the application of CSME rules. Still further, adjudication of disputes by COTED cannot escape the possibility and perception of a conflict of interest since it is made up of government ministers from countries that are directly involved in the dispute. This is despite the provision of Article 28(4), which precludes a member of that council from voting on a matter to which his member State is a party. His presence as an adjudicator is conflict enough.
The report of the Caricom Review Commission identified other deficiencies. The Revised Treaty of Chaguaramas recognises disputes as arising only between member states. In other words, a dispute involving individual citizens or corporate entities can only be pursued by the Government of the member State to which they belong. This means that the complainant must first convince his own Government that his case ought to be taken up, and then has to wait for his Government to pursue the matter at its own pace and with whatever priority and zeal it attaches. For a variety of reasons, the Government may not be inclined to pursue the matter. It may, for example, be in delicate negotiations with or seeking support on a matter from the member State against which the complaint is to be laid.
While it was historically the practice under general international law that it is states that are parties to international agreements and the claims of aggrieved individuals can only be espoused by the State to which they belong, this has long given way, starting with the Treaty of Rome in 1957, to locus standi for natural and legal persons. This was adopted in the treaty provisions establishing the Caribbean Court of Justice (Article 222) and it was this entitlement that allowed Shanique Myrie, subject to special leave of the court, to pursue her landmark case. This entitlement, however, does not currently apply to the other dispute settlement procedures contained in the treaty.
There is a sturdy body of scholarly work and legal opinion supporting the view that, for reasons of transparency and natural justice, individuals who are adversely affected as a result of trade and economic agreements should have access in their own right to all dispute settlement processes. This would allow aggrieved parties — be they individuals or corporate entities — to pursue their grievances as a matter of entitlement, employing the legal and technical expertise that the issue requires.
Furthermore, it is well established that in common law individuals derive rights and obligations from international agreements when they have been enacted into domestic law as is the case with the Revised Treaty of Chaguaramas.
The Caricom Review Commission recommended the establishment of a central Dispute Resolution Body (similar to what obtains in the World Trade Organisation) to which all disputes would be reported and all complaints submitted. That body would be comprised of independent people with the expertise to adjudicate trade disputes, some of which can be extremely complex. It would also employ the internationally recognised modes of dispute settlement as each case requires — consultations, good offices, mediation, conciliation, and arbitration. To lend certainty to the process, its decisions would be subject to judicial review by the Caribbean Court of Justice only on treaty interpretation and points of law.
Bruce Golding served as Jamaica's eighth prime minister from September 11, 2007 to October 23, 2011.
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